1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 THERESA TORRICELLAS, Case No. 22-cv-1670-MMA (KSC)

11 Petitioner, ORDER OVERRULING 12 v. OBJECTIONS AND ADOPTING REPORT AND 13 J. CORE, Warden, and ROB BONTA, RECOMMENDATION; 14 Attorney General, State of California, Respondents. [Doc. No. 12] 15 16 GRANTING MOTION TO DISMISS;

17 [Doc. No. 6] 18 DISMISSING PETITION FOR WRIT 19 OF HABEAS CORPUS AND 20 ISSUING A CERTIFICATE OF APPEALABILITY 21 22 23 On October 24, 2022, Theresa Torricellas (“Petitioner”), a state prisoner 24 proceeding pro se, filed a habeas corpus petition pursuant to

(the 25 “Petition”). See Doc. No. 1. On December 21, 2022, Respondents filed a motion to 26 dismiss the Petition. See Doc. No. 6. On March 15, 2022, Magistrate Judge Karen S. 27 Crawford issued a detailed and well-reasoned Report and Recommendation (“R&R”), 28 recommending that the Court grant Respondents’ motion and deny the Petition. See Doc. 1 No. 12. Petitioner filed an objection to the R&R. See Doc. No. 13. Respondents did not 2 file a reply. Upon due consideration and for the reasons set forth below, the Court 3 OVERRULES Petitioner’s objections, ADOPTS the R&R, GRANTS Respondents’ 4 motion to dismiss, DISMISSES the Petition, and ISSUES a certificate of appealability. 5 I. BACKGROUND 6 Judge Crawford’s R&R includes a thorough and detailed recitation of the relevant 7 background and proceedings. See Doc. No. 12 at 2–5.1 Petitioner does not object to 8 Judge’s Crawford’s account of the facts and the Court therefore incorporates that portion 9 of the R&R here. In short, Petitioner pleaded guilty to second degree murder in 1985. 10 Since then, Petitioner has sought numerous writs and other forms of relief in both state 11 and federal court. 12 Relevant here, on January 9, 2019, Petitioner submitted a petition to the Superior 13 Court for resentencing pursuant to California Penal Code § 1170.95, now codified at 14 § 1172.6. SCR at Lodgment 1. Petitioner was appointed counsel, and the matter was 15 briefed by both Petitioner’s attorney and the California Attorney General’s Office. On 16 July 8, 2020, the Superior Court denied the petition for resentencing, finding that 17 Petitioner’s declaration submitted in support of her petition did not negate the admissions 18 she made during her plea colloquy, which demonstrated Petitioner aided and abetted the 19 murder and was also a major participant in the underlying felony and acted with reckless 20 indifference to human life. SCR at Lodgment 2. Consequently, the Superior Court 21 determined Petitioner had not made a prima facie showing that she was entitled to relief. 22 SCR at 0335–0336. 23 Petitioner appealed this ruling and the Court of Appeal affirmed, finding that the 24 Superior Court correctly considered Petitioner’s record of conviction and agreeing with 25 26 27 1 All citations to electronically filed documents other than the State Court Record refer to the pagination assigned by the CM/ECF system. The Court hereinafter refers to the State Court Record, Doc. No. 7, as 28 1 the Superior Court that Petitioner was statutorily ineligible for relief. SCR at Lodgment 2 7. 3 By way of her current Petition, Petitioner challenges her 1985 judgment of 4 conviction, asserting three grounds for relief. First, she asserts the Superior Court 5 breached her plea agreement through its handling of and ruling on her resentencing 6 petition. Second, she claims denial of her resentencing petition deprived her of a liberty 7 interest and due process. Third, she contends denial of her resentencing petition renders 8 her guilty plea involuntary. 9 Petitioner attaches to her Petition a “Statement,” which, among other things, 10 identifies the “Relief Requested” as remand to the Superior Court for an evidentiary 11 hearing and de novo review of her resentencing petition or withdrawal of her guilty plea 12 and jury trial. 13 On December 21, 2022, Respondents filed a motion to dismiss the Petition, which 14 Petitioner timely opposed. See Doc. Nos. 6, 10. Judge Crawford recommends that the 15 Court grant Respondents’ motion and dismiss the Petition. See R&R. 16 II. LEGAL STANDARD 17 A. Rule 72(b) R&R Review 18 A district court has jurisdiction to review a magistrate judge’s report and 19 recommendation on dispositive matters. See Fed. R. Civ. P. 72(b). Pursuant to Rule 72 20 and

(b)(1), the Court must make a de novo determination of any part of 21 the magistrate judge’s disposition to which a party has properly objected. See id.; see 22 also United States v. Reyna-Tapia,

(9th Cir. 2003) (en banc). The 23 Court “may accept, reject, or modify, in whole or in part, the findings or 24 recommendations made by the magistrate judge.”

(b)(1); see also United 25 States v. Remsing,

(9th Cir. 1989). 26 B. Rule 12(b)(6) Motion to Dismiss 27 A court may dismiss a pleading seeking relief if the pleading “fail[s] to state a 28 claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A motion to dismiss 1 “tests the legal sufficiency of a claim.” Navarro v. Block,

(9th Cir. 2 2001). Rule 12(b)(6) focuses on the “sufficiency” of a claim rather than its substantive 3 merits. Van Buskirk v. Cable News Network, Inc.,

(9th Cir. 2002). A 4 motion to dismiss under Federal Rule 12(b)(6) may be based on either a “lack of a 5 cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable 6 legal theory.” Johnson v. Riverside Healthcare System, LP,

(9th 7 Cir. 2008) (citing Fed. R. Civ. P. 8(a)(2)). To survive a motion to dismiss, the “[f]actual 8 allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. 9 Corp. v. Twombly,

(2013). “A document filed pro se is ‘to be liberally 10 construed,’ and . . . must be held to less stringent standards than formal pleadings drafted 11 by lawyers. . . .’” Erickson v. Pardus,

(2007). 12 III. DISCUSSION 13 Petitioner does not object to Judge Crawford’s recommendations on Respondents’ 14 arguments that the Petition is second or successive and that it is time barred. 15 Accordingly, the Court ADOPTS that portion of the R&R and DENIES Respondents’ 16 motion on those bases for the reasons stated in the R&R. Petitioner does, however, 17 challenge the entirety of Judge Crawford’s legal analysis and recommendation as it 18 relates to whether Petitioner has stated a cognizable federal habeas claim. Accordingly, 19 the Court considers that portion of the R&R de novo. 20 A. Section 1172.6 Resentencing 21 It is necessary to begin with the relevant provisions of the California Penal Code 22 that led to Petitioner’s state court resentencing petition. In 2017, the California 23 Legislature adopted a concurrent resolution, declaring a need to reform the state’s 24 homicide law “to more equitably sentence offenders in accordance with their 25 involvement in the crime.” Sen. Conc. Res. No. 48, Stats. 2017 (2017–2018 Reg. Sess.) 26 res. ch. 175 (Resolution 48). The following year, Senate Bill 1437 was passed, “which 27 made significant changes to the scope of murder liability for those who were neither the 28 actual killers nor intended to kill anyone, including certain individuals formerly subject to 1 punishment on a felony-murder theory.” People v. Strong,

, 707–08 (Cal. 2 2022). 3 4 As relevant here, Senate Bill 1437 significantly limited the scope of the felony-murder rule to effectuate the Legislature’s declared intent “to ensure 5 that murder liability is not imposed on a person who is not the actual killer, 6 did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 7 2018, ch. 1015, § 1, subd. (f); see People v. Gentile, supra, 10 Cal.5th at p. 8 842.) Penal Code section 189, as amended, now limits liability under a felony- murder theory principally to “actual killer[s]” (Pen. Code, § 189, subd. (e)(1)) 9 and those who, “with the intent to kill,” aid or abet “the actual killer in the 10 commission of murder in the first degree” (id., subd. (e)(2)). Defendants who were neither actual killers nor acted with the intent to kill can be held liable 11 for murder only if they were “major participant[s] in the underlying felony 12 and acted with reckless indifference to human life, as described in subdivision (d) of [Penal Code] Section 190.2”—that is, the statute defining the felony- 13 murder special circumstance. (Id., § 189, subd. (e)(3).) 14 15 Id. 16 Originally codified at § 1170.95, section 1172.62 provides a mechanism for those 17 convicted under the former law to seek retroactive relief under the law as amended. See 18

. The process begins with the filing of a petition containing a 19 declaration that all requirements for eligibility are met, see § 1172.6(b)(1)(A), including 20 that “[t]he petitioner could not presently be convicted of murder or attempted murder 21 because of changes to [Penal Code] Section 188 or 189 made effective January 1, 2019,” 22 the effective date of Senate Bill 1437, see § 1172.6(a)(3). If the petition is facially 23 sufficient, counsel is appointed if requested. See, e.g., People v. Lewis,

, 24 957 (Cal. 2021) (“[W]e conclude that the statutory language and legislative intent of 25 section 1170.95 make clear that petitioners are entitled to the appointment of counsel 26

27 2 The Court refers to the statute as section 1172.6 except where quoting from documents before the 28 1 upon the filing of a facially sufficient petition.”). After the appointment of counsel and 2 the opportunity for briefing, the Superior Court may consider the record of conviction to 3 determine whether the petitioner has made a prima facie showing that he or she is entitled 4 to relief.

“If the petition and record in the case establish conclusively that the 5 defendant is ineligible for relief, the trial court may dismiss the petition.” Strong,

5th at 708. However, if the defendant makes a prima facie showing of entitlement to 7 relief, “the court shall issue an order to show cause” and hold an evidentiary hearing. See 8 § 1172.6(c); see also Strong,

. 9 B. Petitioner’s Claims 10 Petitioner asserts three claims. In both her Petition and in opposition to 11 Respondents’ motion, Petitioner describes her three asserted bases for federal habeas 12 relief as: 13 A. The state trial court denied due process of law under 14 USCA by breach 14 of Petitioner’s negotiated plea agreement with the prosecutor when it 15 misconstrued the factual basis of the offense subject of the petitioner’s guilty plea, in violation of 1192.5(b) and contract law principles, to improperly deny 16 petition resentencing process under Penal Code 1170.95. 17 B. The state court denied due process of law under USCA 14 by depriving 18 petitioner of her liberty interest in resentencing pursuant to Penal Code 19 1170.95 by failing to apply Penal Code 1192.5(b) when proceeding on petitioner’s negotiated plea, and by failing to apply other relevant procedures 20 for evaluating whether a prima facie case was established to warrant an 21 evidentiary hearing.

22 C. Petitioner’s plea to second degree murder based on de minimus felony 23 murder rule accomplice liability is involuntary, in violation of 14 USCA, by the trial court’s disregard of the stipulated factual basis of the offense in the 24 negotiated agreement and summary denial of the petition by redetermination 25 of petitioner’s conviction offense as based on direct aider and abettor liability for murder and aggravated felony murder rule accomplice liability per Pen. 26 Code 189(e) (2) and (3). 27 28 Doc. No. 10 at 5, 8, 23. 1 C. Analysis 2 As Judge Crawford correctly recognized, federal habeas corpus relief may be 3 granted “only on the ground that [Petitioner] is in custody in violation of the Constitution 4 or laws or treaties of the United States.”

(a). Errors in the application 5 of state law are not cognizable on federal habeas review. Id.; Estelle v. McGuire, 502

. 67–68 (1991) (“[I]it is not the province of a federal habeas corpus court to 7 reexamine state-court determinations on state-law questions.”), accord Pulley v. Harris, 8

. 41 (1984); see also

(“In conducting habeas review, a federal court is 9 limited to deciding whether a conviction violated the Constitution laws or treaties of the 10 United States.”); Smith v. Phillips,

(1982) (“A federally issued writ of 11 habeas corpus reaches only convictions obtained in violation of some provision of the 12 United States Constitution.”); Mullaney v. Wilbur,

(1975) (noting that 13 “state courts are the ultimate expositors of state law”). Further, matters relating to 14 sentencing and serving of a sentence generally are governed by state law and do not raise 15 a federal constitutional question. See Miller v. Vasquez,

, 1118–12 (9th 16 Cir. 1989), cert. denied,

(1991); Middleton v. Cupp,

, 1085 17 (9th Cir. 1985), cert. denied,

(1986); Sturm v. California Adult Authority, 18

. 448 (9th Cir. 1967), cert. denied,

(1969); see also Wilson v. 19 Corcoran,

. 5 (2010) (“[I]t is only noncompliance with federal law that renders 20 a State’s criminal judgment susceptible to collateral attack in the federal courts.”). 21 In accordance with these authorities, courts in this circuit have held that a state 22 court’s allegedly erroneous denial of resentencing under section 1172.6 does not raise an 23 issue cognizable on federal habeas review. See, e.g., Walker v. Cal. Supreme Court, 24 No. CV 22-4638-CAS(E),

, at *2 (C.D. Cal. Sep. 13, 25 2022) (collecting cases), adopted,

, at *1 (C.D. Cal. Oct. 26 13, 2022). 27 Accordingly, to the extent Petitioner attempts to characterize her challenges to the 28 Superior Court’s denial of her resentencing petition as a federal issue—pursuant to the 1 Fourteenth Amendment or otherwise—the Court DISMISSES her claims. See Langford 2 v. Day,

(9th Cir. 1996) (A petitioner cannot “transform a state-law 3 issue into a federal one merely by asserting a violation of due process”.). 4 Moreover, to the extent Petitioner challenges the Superior Court’s ruling on her 5 prima facie showing, and resulting denial of an order to show cause and evidentiary 6 hearing, the Court similarly DISMISSES her claims. 7 Petitioner vehemently maintains she is statutorily and constitutionally entitled to an 8 evidentiary hearing and that the Superior Court’s alleged error at the prima facie stage 9 denied her of due process. The law in California is clear that § 1172.6 petitioners are 10 entitled to an evidentiary hearing only if the Superior Court first determines they have 11 met their prima facie burden of showing an entitlement to relief. Cal. Pen. Code 12 § 1172.6(c). The law is also clear that in making this initial determination, the Superior 13 Court is entitled to consult the record of conviction, including the factual basis 14 documentation—here, Petitioner’s statements at the change of plea colloquy. See Lewis, 15

(“[W]e now turn to the question of whether a trial court can rely on the 16 record of conviction in determining whether that single prima facie showing is made. The 17 answer is yes.”). 18 Petitioner pleaded guilty to second degree murder by, according to the plea form, 19 “participating in a robbery of Paul Henry; during the course of the robbery Paul Henry 20 was killed by a shot gun blast.” SCR at 0011. Thereafter, during the plea colloquy, 21 Petitioner supplied the following facts:3 22 23 24 25 26

27 3 Because Petitioner repeatedly maintains, in this Court and in state court, that these facts do not appear 28 1 Petitioner knew her co-defendant was going to kill the victim; she was aware they 2 were taking the victim to a remote location to kill him;5 she held the shot gun in the car;6 3 she handed the gun to her co-defendant knowing he intended to kill the victim;7 and she 4 acted as a lookout.8 5 In petitioning the Superior Court for resentencing, Petitioner submitted a 6 declaration wherein she minimizes her role in the incident by explaining, among other 7 things, that she has since uncovered a murder-for-hire plot between her co-defendant and 8 the victim and was herself afraid of her co-defendant. However, the Superior Court 9 found that even accepting the allegations in her declaration as true, she did not negate the 10 admissions she made during her change of plea hearing. SCR at 0335–36. Thus, the 11 Superior Court determined that the record of conviction demonstrated that Petitioner was 12 not entitled to relief and therefore that Petitioner had not met her prima facie burden. The 13 Court of Appeal affirmed, similarly finding that based upon the record, Petitioner is 14 statutorily ineligible for relief under § 1172.6. SCR at Lodgment 7. 15 The Court is bound by the state courts’ interpretation and application of § 1172.6 16 in Petitioner’s case. See Bradshaw v. Richey,

(2005) (per curiam) (“[A] 17 18 19 4 Responding to the court’s question “Then what happened?” with “I felt I knew what was going to happen. I don’t know, I don’t know, I just felt like it put something in motion.” SCR at 0089:24, 25–27; 20 responding to the court’s question of “What did you go down to Mission Valley for?” with “I don’t 21 know. I felt like I knew what was going to happen, okay? It hadn’t been discussed but I knew, you know, anyway –.” SCR at 0092:15–18. 22 5 Responding to the court’s question “Why did you pick Mission Valley?” with “Because I felt like, if you’re going to do it, you know, at least go to someplace not to draw attention.” SCR at 0092:1–4. 23 6 Responding to the court’s question “Where was the shotgun?” with “In my hand.” SCR at 0093:1. 7 Responding to the court’s question “When you got out did you give the gun to [co-defendant]” with “I 24 must have. I don’t recall if he came to me and took it or if I gave it to him and said here or what. But I 25 had it and then he had it and – I don’t know, I believe I asked him – I believe I asked him if he wanted me to do it.” SCR at 0096:6–12. The court then sought clarification asking, “You believe you asked 26 [co-defendant] if he wanted you to shoot him?” and Petitioner responded “Uh-huh.” SCR at 009613–15. 8 Responding to the court’s question “Did you walk with [victim] down the road?” with “I can’t 27 remember. We walked over to a spot. I remember walking by and seeing him not far from the car, and I remember walking up the road a ways, you know, a ways. And then I was going to come back, I was 28 1 state court’s interpretation of state law, including one announced on direct appeal of the 2 challenged conviction, binds a federal court sitting in habeas corpus.”). Further, whether 3 the state court correctly determined Petitioner had not met her prima facie burden is a 4 question of state law. It is not the province of this Court to reexamine these state court 5 determinations. See Estelle, 502 U.S. at 67–68. Accordingly, Petitioner’s challenge to 6 the Superior Court’s failure to hold an evidentiary hearing on her resentencing petition is 7 not a cognizable federal habeas claim. 8 Petitioner’s objections to Judge Crawford’s R&R do not change this outcome. 9 First, her arguments regarding an alleged breach of plea agreement are misplaced. The 10 Superior Court was not a party to the plea agreement. The Superior Court also did not 11 breach the plea agreement. None of Petitioner’s legal citations support her claim. 12 Petitioner also contends she “never pleaded guilty to the factual theories of murder 13 the state court falsely accused her of . . . as justification for denying the Section 1170.95 14 petition.” Doc. No. 13 at 4. Petitioner pleaded guilty to second degree murder and, as 15 the Court of Appeals noted, the one-sentence description of the crime in Petitioner’s plea 16 form was “bereft.” SCR at Lodgment 7. Relying on Petitioner’s sworn description of the 17 incident, and consequently, her role in the crime, in determining if her liability under the 18 felony-murder theory involved the intent to kill and aiding or abetting the actual killer, 19 see

(e)(2), or being a major participant and acting with reckless 20 indifference to human life, see

§ 189(e)(3), for the purposes of assessing whether 21 Petitioner met her prima facie burden of demonstrating § 1172.6(a)(3) did not 22 “redesignate” or “redetermine” Petitioner’s plea or otherwise undermine the plea 23 agreement.9 24

25 26 9 Petitioner’s citations to People v. Silva,

(Cal. Ct. App. 2021), in this respect are inapposite. Silva involved a criminal defendant who undisputedly was entitled to § 1172.6 relief. The 27 Court of Appeal addressed constitutional concerns involving the redesignation and resentencing on a successful § 1172.6 petition at subdivision (e). Petitioner is incorrect that “the same principle is equally 28 1 Second, to the extent Petitioner has a liberty interest in an evidentiary hearing on 2 her § 1172.6 petition, such an interest is a state interest created by California law. Where 3 a state creates a liberty interest, “the Due Process Clause requires fair procedures for its 4 vindication--and federal courts will review the application of those constitutionally 5 required procedures.” Swarthout v. Cooke,

(2011). 6 However, Petitioner does not assert that the procedure set forth in § 1172.6 is 7 constitutionally insufficient. Rather, she contends that in this instance, application of the 8 procedure denied her of due process; Petitioner asserts that the Superior Court engaged in 9 impermissible fact-finding at the prima facie stage of the § 1172.6 procedure, thus 10 depriving her of a liberty interest in an evidentiary hearing. 11 A state court’s misapplication of state sentencing law may violate due process only 12 if a petitioner can demonstrate both state sentencing error and that the error was “so 13 arbitrary or capricious as to constitute an independent due process [violation].” 14 Richmond v. Lewis,

(1992). But Petitioner does not explain how the state 15 courts’ uniform determinations that she is statutorily ineligible for relief under 16 § 1172.6—thus warranting denial at the prima facie stage and without an evidentiary 17 hearing—were erroneous, nonetheless arbitrary and capricious. Simply saying they were 18 does not make them so. Therefore, the Due Process Clause does not require the Superior 19 Court to grant Petitioner an evidentiary hearing. Accordingly, that the Superior Court did 20 not gratuitously grant her such procedure deprived Petitioner of no liberty interest. 21 Even assuming Petitioner’s challenge to the Superior Court’s denial of an 22 evidentiary hearing is cognizable, habeas relief is unavailable here. The principles of 23 Brecht v. Abrahamson,

, 637–38 (1993), forbid the granting of federal 24 habeas relief for a non-structural error that had no “substantial and injurious effect or 25 influence” on the outcome of the state proceeding. As noted above, both the Superior 26 Court and Court of Appeal have determined that Petitioner is statutorily ineligible for 27 resentencing under § 1172.6. Thus, no such effect or influence resulted from the 28 Superior Court’s failure to hold an evidentiary hearing here. Cf. People v. Coley,

App. 5th 247, 262 (Cal. Ct. App. 2022) (“[T]he failure to hold a hearing did not cause 2 prejudice because appellant was ineligible for resentencing as a matter of law.”); see also

U.S. Dist. LEXIS 191025, at *5–6. For this reason as well, Petitioner’s 4 challenges are not cognizable federal habeas claims. 5 In sum, to the extent Petitioner has a liberty interest in resentencing or an 6 evidentiary hearing on her resentencing petition, the Superior Court did not deprive her of 7 such an interest without due process. Petitioner’s disagreement with the Superior Court’s 8 prima facie determination on her resentencing petition under the guise of a Fourteenth 9 Amendment Due Process claim is not cognizable. It would seem the Constitution 10 requires at least minimal procedure—which Petitioner undoubtedly received as Judge 11 Crawford described—and adherence to its own procedure. The Superior Court applied 12 the procedure set forth in § 1172.6 and Petitioner does not claim otherwise. Rather, 13 Petitioner takes issue with the result of the application of that procedure. This is an area 14 of state law where this Court cannot enter on federal habeas review. 15 The remainder of Petitioner’s objections are without merit. 16 IV. CERTIFICATE OF APPEALABILITY 17 The federal rules governing habeas cases brought by state prisoners require a 18 district court that dismisses or denies a habeas petition to grant or deny a certificate of 19 appealability in its ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. 20 § 2254. “A certificate of appealability should issue if ‘reasonable jurists could debate 21 whether’ (1) the district court’s assessment of the claim was debatable or wrong; or 22 (2) the issue presented is ‘adequate to deserve encouragement to proceed further.’” 23 Shoemaker v. Taylor,

(9th Cir. 2013) (quoting Slack v. McDaniel, 529

(2000)). 25 Here, the Court determines that reasonable jurists could disagree with the Court’s 26 assessment of whether a claim based upon an alleged error in the prima facie 27 determination of resentencing under § 1172.6(c) and resulting denial of an evidentiary 28 hearing is a cognizable federal habeas claim. In fact, courts have already disagreed. 1 || Compare Walker,

, at *5, with Luckett v. Bird, No. 22-cv- 2 ||06634-HSG,

, at *5 (N.D. Cal. Dec. 16, 2022); cf’ Clayton 3 || v. Biter,

, 846 n.2 (9th Cir. 2017). Accordingly, the Court ISSUES a 4 certificate of appealability as to this specific issue only. 5 V. CONCLUSION 6 Based upon the foregoing, the Court OVERRULES Petitioner’s objections, 7 || ADOPTS Judge Crawford’s R&R, GRANTS Respondents’ motion, and DISMISSES 8 Petition. The Court ISSUES a certificate of appealability to the extent noted above. 9 IT IS SO ORDERED. 10 Dated: June 13, 2023 11 Mikula Lille 12 HON. MICHAEL M. ANELLO 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28